Kiwo V. State (2020)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

On 29 November, 2012, the High Court of Kwara State (S.D. Kawu, J) convicted the appellant for raping one Suliat Ibrahim (f), being an offence punishable under Section 283 of the Penal Code Law of Kwara State. The offence was said to have been committed on 11 May, 2010.

The appellant contested his conviction at the Court of Appeal (the lower Court) on his notice of appeal filed on 21 November, 2013 containing five (5) grounds of appeal. The appeal was heard and determined on four (4) issues formulated from the said 5 grounds of appeal. The appellant, both at the trial Court and the lower Court was represented by counsel.

On 16 July, 2013, the appeal was dismissed by the lower Court in the judgment of Tijjani Abubakar JCA unanimously concurred by the other two justices on the panel. Still aggrieved, the appellant has further appealed to this Court vide the notice of appeal filed on 26 July, 2013, which on his application filed on 31 January, 2018, was regularised on 24 October, 2019. The notice of appeal has 6 grounds of appeal.

​The appellant’s counsel, Ayodeji O. Omotosho, Esq., has formulated

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3 issues from the said 6 grounds of appeal. The issues are –

3i. Whether the evidence of PW3 and PW4 were not inadmissible, having been taken in contravention of Section 209(1) of the Evidence Act, whereupon the said evidence ought not to have been relied upon by the Court below (and the trial Court before it) in finding that the respondent had proved the guilt of the appellant beyond reasonable doubt for the offence of rape punishable under Section 283 of the Penal Code? – (Distilled from ground 4 of the notice of appeal). The appellant shall, at the hearing apply to the honourable Court for leave to raise this issue as a new point on appeal, not previously taken in the Courts below.

In the alternative

3ii. Whether there was cogent, credible and sufficient evidence/unequivocal corroborative on record which proved beyond reasonable doubt, that the appellant had, in fact, had unlawful sexual intercourse with one Suliat Ibrahim (PW3), such as to ground the conviction of the appellant for the crime of rape punishable under Section 283 of the Penal Code? (Distilled from grounds 1, 3 and 5 of the notice of appeal).

3iii. Whether PW3 and PW4’s

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testimonies of identity of the appellant as the perpetrator of the alleged rape of PW3 were spontaneous, extemporaneous, unrehearsed and reliable to justify the reliance on same to convict the appellant for the crime of rape punishable under Section 283 of the Penal Code? (Distilled from ground 2 of the notice of appeal).

The present issue 1 stridently, albeit vociferously, canvassed and argued before this Court, was not once canvassed at either the trial Court or the lower Court. It is a fresh issue, in the circumstance. An appellant cannot raise and argue a fresh issue in this Court of appeal being by way of re-hearing only, without leave of Court first sought and granted. The necessity for leave sought and granted to the appellant to raise fresh issue on appeal is the fact that an appellate Court is not in a position to determine the correctness or otherwise of an issue not raised and determined at the Court below per Ngwuta JSC, Adeosun v. The Governor, Ekiti State (2012) All FWLR (Pt. 619) 1044, (2012) 4 NWLR (Pt. 1291) 581, (2012) LPELR – 7843 (SC). Of course, it is indisputable that an appeal is an invitation to a higher Court to find out whether,